THE PEOPLE &C., APPELLANT, v. NICHOLAS BENEVENTO, RESPONDENT.

91 N.Y.2d 708, 697 N.E.2d 584, 674 N.Y.S.2d 629 (1998).June 11, 1998

1 No. 87

[98 NY Int. 0076]
Decided June 11, 1998

This opinion is uncorrected and subject to revision before publication in the New York Reports.

SMITH, J.:

Defendant successfully claimed at the Appellate
Division that he was deprived of his constitutional right to the
effective assistance of counsel. We conclude that, upon this
record, defendant received meaningful representation. Accordingly, the order of the Appellate Division should be
reversed.

Shortly after 2:00 a.m. on June 17, 1993, the
complainant was walking down Bleecker Street in Manhattan when
she noticed a man following closely behind her. After a brief
verbal exchange with defendant, she crossed the street and turned
away. At this point, defendant ran up behind her and knocked her
to the ground. Defendant began slapping and punching the woman
in the face while screaming obscenities at her. The woman also
felt defendant's hands fondling her breasts and pelvic area.
When some bystanders approached to assist the woman, defendant
stole $15 from her pocket and ran off. Chased by the group,
defendant discarded the stolen money but ultimately surrendered
to one of his pursuers.

As he was escorted to the crime scene, defendant
admitted to stealing the complainant's money. Defendant made a
similar confession to the police officers upon his arrest and
confessed a third time to an assistant district attorney during
later questioning. Defendant tried to explain that, prior to the
incident, he had been drinking "a lot of Jack Daniels," and upon
observing the complainant, he "said something stupid to her and
then went crazy on her." Defendant was indicted and charged with
robbery in the second degree.

From his opening statement to the jury, defense counsel
indicated that his strategy was that defendant lacked therequisite intent to deprive the complainant of her property.
While counsel conceded that defendant assaulted the complainant,
counsel argued "that there [was] adundant doubt, not just
reasonable doubt that [defendant] intended to deprive the
complaining witness of any property whatsover," an essential
element to convict defendant of the sole crime charged in the
indictment. In light of that strategy, counsel noted that
defendant already had $200 on his person at the time of the
alleged robbery. Counsel also adduced evidence that defendant
was too intoxicated to form the requisite intent. Although
counsel did not highlight the evidence of intoxication during his
summation to the jury, he requested and received a jury
instruction in that regard.

Defendant points to counsel's other efforts that he now
claims were deficient. For example, counsel indicated during his
opening statement that defendant would testify as to a lack of
intent, but defendant ultimately did not take the stand. Counsel
also requested, but was denied, a jury charge on assault as a
"lesser included offense."
[n.1]
Finally, counsel delivered a
summation and used hypotheticals that the trial judge ruled, onobjection by the People, irrelevant to the case. Nevertheless,
counsel's summation reiterated the primary strategy of the
defense, that defendant lacked the requisite intent to deprive
the complainant of her property.

The jury convicted defendant of second degree robbery.
Defendant was sentenced to an indeterminate prison term of one
and one half to four and one half years. A majority at the
Appellate Division found that the trial record demonstrated that
defendant had not received "meaningful assistance" because
counsel's conduct indicated "no discernible defense strategy."
One Justice dissented and concluded that "counsel [had] pursued
the only viable defense based on the evidence": attempting to
convince the jury that defendant was "not guilty of robbery based
on the lack of evidence of intent to steal." We agree with the
dissent and reverse the order of the Appellate Division.

I

An "essential ingredient in our system of criminal
jurisprudence, rooted deeply in our concept of a fair trial
within the adversarial context" ( People v Felder, 47 NY2d 287,
295) is the right to the assistance of counsel guaranteed under
both the Federal and State Constitutions ( see, US Const, 6th
Amend; NY Const, art I, § 6). The constitutional mandate extends
to the giving of "effective" aid ( Powell v Alabama, 287 US 45,
71) which generally means "the reasonably competent services of
an attorney devoted to the client's best interests" ( People vOrtiz, 76 NY2d 652, 655 656; People v Bennett, 29 NY2d 462, 466
[the right "means more than just having a person with a law
degree nominally represent [defendant] upon a trial and ask
questions"]). The fundamental right to the "effective assistance
of counsel is recognized not for its own sake, but because of the
effect it has on the ability of the accused to receive a fair
trial" in an adversarial system of justice ( People v Claudio, 83 NY2d 76, 80 [citation omitted]).

The phrase "effective assistance" is not, however,
amenable to precise demarcation applicable in all cases ( see,
People v Baldi, 54 NY2d 137, 146 ["what constitutes effective
assistance *** varies according to the unique circumstances of
each representation"]; People v Rivera, 71 NY2d 705, 708). Thus,
this Court has long applied a flexible standard to analyze claims
based upon a deprivation of rights guaranteed under the New York
State Constitution due to counsel's alleged ineffectiveness. As
we have held, "[s]o long as the evidence, the law, and the
circumstances of a particular case, viewed in totality and as of
the time of the representation, reveal that the attorney provided
meaningful representation, the constitutional requirement will
have been met" ( People v Baldi, 54 NY2d, at 147). The core of
the inquiry is whether defendant received "meaningful
representation."

In applying this standard, counsel's efforts should not
be second guessed with the clarity of hindsight to determine howthe defense might have been more effective ( see, People v
Satterfield, 66 NY2d, at 799). The Constitution guarantees the
accused a fair trial, not necessarily a perfect one ( see, People
v Flores, 84 NY2d 184, 187; People v Ford, 86 NY2d 397, 404 ["The
phrase 'meaningful representation' does not mean 'perfect
representation'"]; People v Aiken, 45 NY2d 394, 398
["representation need not be errorless"]; People v Modica, 64 NY2d 828 ["the test being 'reasonable competence,' not perfect
representation"]). That a defendant was convicted may have
little to do with counsel's performance, and courts are properly
skeptical when "disappointed prisoners try their former lawyers
on charges of incompetent representation" ( People v Brown, 7 NY2d 359, 361).

Accordingly, a reviewing court must avoid confusing
"true ineffectiveness with mere losing tactics and according
undue significance to retrospective analysis" ( People v Baldi, 54
NY2d, at 146). Rather, "it is incumbent on defendant to
demonstrate the absence of strategic or other legitimate
explanations" for counsel's alleged shortcomings ( People v
Rivera, 71 NY2d, at 709; compare, People v Flores, 84 NY2d 184 with People v Bennett, 29 NY2d 462, 465; People v Droz, 39 NY2d 457, 463; People v Gonzalez, 47 NY2d 606, 611). Counsel's
performance should be "objectively evaluated" ( People v
Angelakos, 70 NY2d 670, 673) to determine whether it was
consistent with strategic decisions of a "reasonably competentattorney" ( People v Satterfield, 66 NY2d 796, 799; People v
Angelakos, 70 NY2d 670, 673). As long as the defense reflects a
reasonable and legitimate strategy under the circumstances and
evidence presented, even if unsuccessful, it will not fall to the
level of ineffective assistance ( see, e.g., People v Lane, 60 NY2d 748, 750). As we have stated,

"[t]o prevail on a claim of ineffective
assistance, defendants must demonstrate that
they were deprived of a fair trial by less
than meaningful representation; a simple
disagreement with strategies, tactics or the
scope of possible cross examination, weighed
long after the trial, does not suffice"
( People v Flores, 84 NY2d 184, 187).

The Federal standard for claims of ineffective
assistance based upon a counsel's performance was set forth by
the Supreme Court in Strickland v Washington (466 US 668). The
two part Strickland test requires a showing that "counsel's
performance was deficient and that the deficiency in performance
prejudiced defendant" ( People v Ford, 86 NY2d 397, 405). As to
the "prejudice" aspect, "defendant must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine
confidence in the outcome" (466 US, at 694).

We have similarly noted that a claim of ineffective
assistance of counsel will be sustained only when it is shown
that counsel partook "an inexplicably prejudicial course" ( People
v Zaborski, 59 NY2d 863, 865). However, prior to Strickland, wehad "developed a somewhat different test for ineffective
assistance of counsel under article I, § 6 of the New York
Constitution from that employed by the Supreme Court in applying
the Sixth Amendment" ( People v Claudio, 83 NY2d 76, 79). Under
the State Constitution, "prejudice" is examined more generally in
the context of whether defendant received meaningful
representation.

The question is whether the attorney's conduct
constituted "'egregious and prejudicial'" error such that
defendant did not receive a "fair trial" ( People v Flores, 84 NY2d 184, 188; see also, People v Hobot, 84 NY2d 1021, 1022 [test
is whether counsel's errors "seriously compromise[] a defendant's
right to a fair trial"]; People v Jones, 30 AD2d 1038, 1039
[counsel's errors were "so prejudicial to the defendant" that
they deprived him of a "fair trial"], affd 25 NY2d 637). Stated
another way, a court must examine whether counsel's acts or
omissions "prejudice[d] the defense or defendant's right to a
fair trial" ( People v Hobot, 84 NY2d 1021, 1024; see also People
v Bennett, 29 NY2d 462, 464 [question is whether "the
representation of a defendant by his assigned lawyer was so
inadequate and ineffective as to deprive him of a fair trial"];
People v Aiken, 45 NY2d 394, 398 ["basic issue" is "whether a
defendant's counsel, appointed or retained, failed to provide
effective legal representation, thereby depriving the defendant
of a fair trial"]).

While the inquiry focuses on the quality of the
representation provided to the accused, the claim of
ineffectiveness is ultimately concerned with the fairness of the
process as a whole rather than its particular impact on the
outcome of the case. In that regard, we have refused to apply
the harmless error doctrine in cases involving substantiated
claims of ineffective assistance ( see, People v La Bree, 34 NY2d 257, 260; cf., People v Wicks, 76 NY2d 128 [harmless error
analysis proper in cases involving certain preliminary hearings
though not to errors made at trial or generally during course of
prosecution]). Thus, whether defendant would have been acquitted
of the charges but for counsel's errors is relevant, but not
dispositive under the State constitutional guarantee of effective
assistance of counsel. The safeguards provided under the
Constitution must be applied in all cases to be effective and,
for that reason, "our legal system is concerned as much with the
integrity of the judicial process as with the issue of guilt or
innocence" ( People v Donovan, 13 NY2d 148, 153 154).

II

Applying the well settled Baldi test to the facts
before us, we conclude that this defendant received effective
assistance of counsel. Far from being inconsistent with
reasonable representation, counsel logically attempted to
disprove an element of the charged crime a standard defense
tactic ( see, People v Ellis, 81 NY2d 854 [counsel providedmeaningful representation by arguing that defendant, charged with
robbery, had only committed a larceny]; People v Lane, 60 NY2d 748, 750). The claimed deficiencies in counsel's performance do
not undercut the conclusion that defendant, who had previously
confessed to the crime, received meaningful representation. The
defense strategy remained clear from counsel's opening remarks
through his summation. Counsel supported the strategy by
introducing evidence of intoxication and requesting relevant jury
instructions. Moreover, counsel's ultimate decision not to call
defendant to the stand albeit following representations to the
contrary made in opening remarks does not constitute an
objectively incompetent performance. Thus, defendant was
provided with meaningful representation.

In light of our conclusion, we have no occasion to
consider whether we should adopt Strickland or otherwise abandon
our discrete approach which pre dates the Supreme Court's
formulation of the Federal standard.

The order of the Appellate Division should be reversed
and the case remitted to the Appellate Division for consideration
of the facts pursuant to CPL 470.25(2)(d) and 470.40(2)(b).

* * * * * * * * * * * * * * * * *

Order reversed and case remitted to the Appellate Division, First
Department, for further proceedings in accordance with the
opinion herein. Opinion by Judge Smith. Chief Judge Kaye and
Judges Titone, Bellacosa, Levine, Ciparick and Wesley concur.